The Engadget Interview: the EFF's Mitch Stoltz talks the legality of jailbreaking

The work of a non-profit advocacy group is never done. It seems like just yesterday that the Electronic Frontier Foundation was waging a battle to put jailbreaking rights into the hands of consumers, much to the chagrin of manufacturers intent on maintaining control over their devices after they leave store shelves. With the looming expiration of an exemption to the Digital Millennium Copyright Act that has made such hacks legal, the organization is once again taking up the cause. And this time, it's added tablets and gaming consoles to its proposal. We sat down with EFF staff attorney Mitch Stoltz to discuss the state of the law and how users can help in the fight.

Why is the debate over the legality of jailbreaking suddenly in the news again?

The Digital Millennium Copyright Act has an exemptions process. The Library of Congress every three years makes exemptions to the law. Those have to be renewed, so we're coming up on the next cycle. In the last cycle, the EFF asked for an exemption so that you can jailbreak a smartphone that you own, to run your own software on it, so that wouldn't be a violation of the Digital Millennium Copyright Act, section 1201.

The idea behind this cycle is that the technology itself is evolving, so you may have to reevaluate the thinking behind it.

I think that was the reason, but in certain ways it seems a little ridiculous to have to present justifications every few years. You could make the case that technology changes and needs change, but it certainly puts a big administrative burden on people who are defending people rights, just to use their own devices.

Is this a tricky area in terms of interpreting the Digital Millennium Copyright Act?

It's not clear at all. What is clear is that device manufacturers have used the DMCA specifically to enforce incompatibility with third-party products. Sometimes the courts have allowed that and sometimes they haven't. In those cases it's used as a way to shut out competition.

That seems to be an argument you can make about the Digital Millennium Copyright Act in general, that companies have been utilizing it to do corporate bidding.

Absolutely.

Is the law as a whole flawed? Why focus on this specific section?

I'm new to EFF, but I know that in previous cycles [it] has proposed exemptions and then at one point decided that the whole process was basically fixed and unfair, and decided not to propose any more. But if organizations like us don't argue for exemptions, no one will. It's not the sort of process that's easy or cheap for individuals to do. The Copyright Office asks for a lot of very detailed proof. They have hearings and they want specifics. Its a process generally for lawyers.

Why does this fall under the jurisdiction of the Copyright Office?

Because that's how it was written. It gave the Copyright Office the power to grant exemptions to the law, and at the time it was seen as a safety valve. The worry, which has come to pass, was that the DMCA would be abused and would be used to shut down activities that don't infringe copyright. I think, and a lot of other people do, that the better way to do this from the start would've been to put into the law that if any use, any circumvention of digital locks doesn't lead to an infringement of copyright or isn't for that purpose or it's done for a legal purpose, then the circumvention itself shouldn't be illegal, but that's pretty clearly not how the law was written.

So, since the larger law falls under the Copyright Office's jurisdiction, these exemptions are included.

Right. And It's used in situations where copyright infringement really isn't the issue. It isn't about people protecting their creative work, it's mostly about people protecting their businesses, whether those businesses are about creative works or not. Because anything you do on the internet involves making a copy, that means copyright law becomes the de facto regulatory regime for the internet and so the people who control copyright law: Congress, the copyright office and so on, are effectively regulating the internet whenever they meddle in this area.

The ultimate question here, then, is what kind of rights, if any, do the hardware manufacturers have over the hardware once it's sold to you?

That's a big question. They can have rights that come from contracts. Say you buy a smartphone from a carrier that says what you can and you can't do with the phone. I don't know if you want me to get into whether those sort of rights are a good thing or not, but if you look at the issue at hand it is exactly that. It gets into the rights of a hardware manufacturer and the owner of a piece of hardware, which are sort of negative rights. They aren't stated necessarily in the law, but they're things we all understand. We see comments that people have posted to the Copyright Office in support of our requests on jailbreaking, and over and over the analogy that they're making is to a car -- that to prevent jailbreaking is like welding the hood shut on a car or to legally prevent you from modifying a car that you own and that just strikes a lot of people as absurd.

The exemptions that you're asking for have been broadened to including tablets and consoles. Are you risking shooting yourself in the foot by bringing more companies into the fold to present arguments against you?

It's possible, and the Copyright Office historically has interpreted this law very narrowly as to what exemptions they'll grant. They grant exemptions very grudgingly but they've opened up a little bit in the past two cycles as to what they've granted and that's given us hope. Based on the comments that we've seen, there's pretty widespread support for an exemption on jailbreaking in regards to mobile devices, and we think there's pretty widespread support for video game consoles as well.

The console exemption is our major new "ask" this time. I got an interesting comment on it this morning -- a gentleman made a comment to the Copyright Office that he has a child with autism and he needs to use a modified video game console to show DVDs in ways that his child can deal with and benefit from best. It's just such a specialized need and market that it's not something that console or video game makers would ever do.